ISDA Master Agreement and Emerging Swaps Jurisprudence 313
Section 2(a)(iii) of the
ISDA Master
Agreement and
Emerging Swaps
Jurisprudence in the
Shadow of Lehman
Brothers
Stephen H. Moller
Partner, K&L Gates LLP, London
Anthony R. G. Nolan
Partner, K&L Gates LLP, New York
*
Howard M. Goldwasser
Partner, K&L Gates LLP, New York
Anti-deprivation principle; Comparative law;
Corporate insolvency; Investment banks; Master
agreements; Suspension; Swap agreements; United States
Introduction
In the dark days of 2008, as the world’s financial markets
were still struggling to recover from unprecedented
illiquidity and the fire-sale purchase of Bear Stearns by
JP Morgan Chase, Lehman Brothers began to teeter under
the weight of its leveraged commercial real estate
portfolio, a series of bad decisions by its management
and an emerging crisis of confidence that prompted the
massive exodus of most of its clients, drastic losses in its
stock and the devaluation of its assets by the rating
agencies.
Matters came to a head in the middle of the night of
September 14–15, 2008, when Lehman Brothers Holdings
Inc (LBHI), filed a voluntary petition for bankruptcy
protection in the United States Bankruptcy Court for the
Southern District of New York. Its English trading
subsidiary Lehman Brothers International Europe (LBIE)
entered into administration in London shortly thereafter.
In the following weeks, many other Lehman Brothers
subsidiaries filed for bankruptcy protection, including
Lehman Brothers Inc, the United States broker-dealer
(LBI), and Lehman Brothers Special Financing Inc
(LBSF), which carried out the bulk of Lehman Brothers
derivative-counterparty activity.1
Prior to its bankruptcy, LBHI had been the
fourth-biggest investment banking firm in the United
States, ranking behind only Goldman Sachs, Morgan
Stanley and Merrill Lynch. On September 16, 2008,
Lehman Brothers was the largest financial entity to have
become a bankrupt debtor. Lehman Brothers demise
convulsed the world’s financial markets as it became clear
how interconnected Lehman Brothers was as a
counterparty in markets throughout the world, and, as an
example, its bankruptcy led directly to unprecedented
strains on money market funds and hedge funds. Its
bankruptcy also had significant implications for
derivatives markets because Lehman Brothers had
hundreds of billions of dollars in gross notional amount
of derivative positions outstanding on the date of its filing.
Disputes that have arisen in both the jointly
administered bankruptcy case of LBHI and LBSF in New
York and the administration of LBIE in London have put
what (until recently) have been considered relatively
non-controversial provisions of the form swap contracts
published by International Swaps and Derivatives
Association (ISDA) and a number of the legal principles
that affect the enforceability of those provisions in the
context of a counterparty’s insolvency to an
unprecedented test. The fact that similar issues have arisen
on both sides of the Atlantic is a testament both to the
wide popularity of the ISDA master agreement and to the
international nature of the swaps markets. An interesting
feature of the litigation to date is how courts in the two
jurisdictions have taken divergent paths. Some points of
departure reflect differences between the bankruptcy-law
regimes in the United States and England and some reflect
differences in the approaches taken by the judges in the
two countries. These differences are potentially
significant, not only because New York and London are
generally acknowledged to be the world’s two leading
financial centers, but also because New York law and
English law are the two alternative governing laws
contemplated by the ISDA master agreement.
This article will focus on how the courts in both
jurisdictions have approached the practical ability of a
non-defaulting, non-bankrupt counterparty of Lehman to
suspend payment obligations under s.2(a)(iii) of the ISDA
master agreement. After providing an overview of the
relevant contractual provisions embodied in the ISDA
agreements and of the relevant bankruptcy principles in
both jurisdictions, we will turn to a discussion of the
leading Lehman Brothers cases that have addressed the
effect of bankruptcy or insolvency on the rights of a
non-defaulting counterparty under s.2(a)(iii) of the ISDA
master agreement. In the United States, the leading case
to date is Metavante,2 a case in which the Lehman estate
sought to compel the performance by Metavante
Corporation, an interest rate swap counterparty of certain
payment obligations that Metavante Corporation had
suspended under s.2(a)(iii) in reliance of the event of
*
The authors wish to acknowledge the assistance of Rowena E. Downie, Melissa J. Gambol and Lloyd H. Johnson II, associates of K&L Gates LLP.
LBSF commenced its Ch.11 bankruptcy case on October 3, 2008. LBHI and its subsidiaries are generally referred to herein as “Lehman Brothers.”
2
In re Lehman Brothers Holdings Inc Case No. 08–13555 (JMP) (Bankr. SDNY September 15, 2009) (transcript of record excerpts) at 99 et seq. (Metavante).
1
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314 Journal of International Banking Law and Regulation
default arising from the Lehman bankruptcy. In England,
several cases have considered the effect of s.2(a)(iii) in
similar circumstances, of which the most significant are
Lomas v JFB Firth Rixson3 and LBSF v Carlton.4
Overview of relevant principles
ISDA master agreement provisions
For over 20 years, over-the-counter swaps and other
derivative contracts have been documented using the
provisions prescribed by the forms of standard terms
documents and master agreements and the related
transaction architecture, all of which have been designed
by ISDA. There are two versions of the ISDA master
agreement, one published in 1992 and the other, in 2002.
The 1992 version was the first to be designed in a form
applicable to derivatives other than swaps and to
accommodate both financially and physically settled
transactions. The 2002 version is largely based on the
1992 version, but with several significant differences to
reflect changes in the markets and lessons learned during
the intervening decade. The principal changes reflected
in the 2002 version are essentially changes to events of
default and termination events, changes to the mechanism
for electing cross-transaction payment netting, changes
to the mechanism for calculating termination payments
following an early termination date and inclusion of a
detailed set-off provision.
Additionally, s.9(h)(i)(3) of the 2002 version of the
ISDA master agreement contains a change pertaining to
interest on defaulted and deferred payments and
compensation for defaulted deliveries before early
termination and for interest on early termination amounts
and unpaid amounts following early termination. Entitled
“Interest on Deferred Payments”, this provision states:
“[i]f: (A) A party does not pay any amount that, but
for Section 2(a)(iii), would have been payable, it
will, to the extent permitted by applicable law and
subject to Section 6(c) and clauses (B) and (C)
below, pay interest (before as well as after judgment)
on that amount to the other party on demand (after
such amount becomes payable) in the same currency
as that amount, for the period from (and including)
the date the amount would, but for Section 2(a)(iii),
have been payable to (but excluding) the date the
amount actually becomes payable, at the Applicable
Deferral Rate.”
The mechanism for termination following an event of
default (including bankruptcy) is essentially the same in
both the 1992 and the 2002 versions of the ISDA master
agreement, even though the method for calculating the
termination amount payable in connection with
termination is very different. Section 6 of both versions
of the ISDA master agreement establishes that upon the
occurrence of an “event of default” with respect to a party
(including a bankruptcy filing by a party or its guarantor),
the non-defaulting party has the right (but not the
obligation) to terminate all transactions under the ISDA
master agreement and determine an early termination
amount.5 The non-defaulting party may also foreclose on
collateral held by it and exercise rights of set-off. If a
non-defaulting party chooses not to terminate transactions
despite the occurrence of an event of default, s.2(a)(iii)
of the master agreement subjects its ongoing payment
obligations to the condition precedent that no event of
default with respect to the other party has occurred and
is continuing.6
Relevant bankruptcy principles of US and
English law
The safe harbours from the automatic stay
under the United States Bankruptcy Code
Providing for a debtor’s assets to be distributed in a fair
and equitable way among the creditors of the debtor is a
fundamental policy underpinning the United States
Bankruptcy Code.7 A key concept in the enforcement of
this policy is that of the “automatic stay”, under which
creditors of a bankrupt entity are automatically stayed
from enforcing contractual rights against the debtor
without the Bankruptcy Court’s authorisation or a specific
statutory exception.
However, beginning in 1982, the Congress formulated
a series of amendments to the Bankruptcy Code with the
objective of creating certain “safe harbors” to protect
rights of termination and set-off under “securities
contracts”, “commodities contracts”, and “forward
contracts.” Those changes were subsequently refined and
expanded to cover “swap agreements”, “repurchase
agreements”, and “master netting agreements.” The “safe
harbors” from the automatic stay reflected the recognition
of Congress that financial instruments such as swaps raise
unique systemic issues and that the imposition of a stay
on the right of non-defaulting counterparties to such
instruments to terminate or otherwise enforce rights under
3
Lomas v JFB Firth Rixson Inc [2010] EWHC 3372 (Ch).
Lehman Brothers Special Financing Inc v Carlton Communications Ltd [2011] EWHC 718 (Ch).
5
Generally speaking, the early termination amount is intended to approximate the amount which would be payable by (or to) the non-defaulting party as the premium (or
reverse premium) for the setting up of a replacement transaction, on precisely the same terms as the Terminated Transaction for the remainder of its natural term.
6
Section 2(a)(iii) of the ISDA master agreement provides in relevant part as follows: “Each obligation of each party [to make payment or delivery under the master agreement]
is subject to (1) the condition precedent that no Event of Default or Potential Event of Default with respect to the other party has occurred and is continuing, (2) the condition
precedent that no Early Termination Date in respect of the relevant transaction has occurred or been effectively designated and (3) each other applicable condition precedent
specified in this Agreement.” Therefore, according to the express terms of the master agreement, following the occurrence and during the continuance of an event of default,
the non-defaulting party is not required to terminate the ISDA master agreement following an event of default, with concomitant termination amounts owing to the defaulting
party if the non-defaulting party is out of the money, and it equally is not required to perform obligations under the ISDA master agreement.
7
Section 362(a) of the United States Bankruptcy Code imposes the automatic stay on creditors of the debtor at the moment a bankruptcy petition is filed. The automatic
stay generally prohibits the commencement, enforcement or appeal of actions and judgments, judicial or administrative, against a debtor for the collection of claims that
arose prior to the filing of the bankruptcy petition and also prohibits collection actions and proceedings directed toward property of the bankruptcy estate itself.
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ISDA Master Agreement and Emerging Swaps Jurisprudence 315
such instruments could expose those participants to rapid
changes in market conditions and interest rates that could
be very costly, or even lead to a domino-effect of
settlement failures. In either case, Congress concluded
that the automatic stay could ultimately have material
adverse effects on the stability of the overall financial
system.8
The principal safe harbours from the automatic stay
that benefit swaps are ss.362(b)(17, 560 and 561 of the
Bankruptcy Code.
Section 362(b)(17) provides that the filing of a
bankruptcy petition:
“does not operate as a stay … of the setoff by a swap
participant or financial participant of a mutual debt
and claim under or in connection with one or more
swap agreements that constitutes the setoff of a claim
against the debtor for any payment or other transfer
of property due from the debtor under or in
connection with any swap agreement against any
payment due to the debtor from the swap participant
or financial participant under or in connection with
any swap agreement or against cash, securities, or
other property held by, pledged to, under the control
of, or due from such swap participant or financial
participant to margin, guarantee, secure, or settle
any swap agreement.”
Section 560 is a safe harbour from the automatic stay
for swap agreements. It provides as follows:
“[t]he exercise of any contractual right of any swap
participant or financial participant to cause the
liquidation, termination, or acceleration of one or
more swap agreements because of a condition of the
kind specified in Section 365(e)(1) of this title or to
offset or net out any termination values or payment
amounts arising under or in connection with the
termination, liquidation, or acceleration of one or
more swap agreements shall not be stayed, avoided,
or otherwise limited by operation of any provision
of this title or by order of a court or administrative
agency in any proceeding under this title.”9
These provisions protect the rights of non-defaulting
counterparties to set–off of mutual claims against an entity
that has filed a bankruptcy petition and to exercise
contractual rights that otherwise would have been
automatically stayed upon the filing of such a petition.
The anti-deprivation principle of English
insolvency law
English law also has mandatory rules in relation to the
distribution of a debtor’s assets in a formal insolvency
procedure, notably in relation to the pari passu treatment
of unsecured creditors as regards distributions made in a
liquidation or administration pursuant to the English
Insolvency Act 1986.10
Put simply, the anti-deprivation rule is founded on the
premise that the parties to an agreement cannot contract
out of mandatory provisions of legislation governing the
distribution of an insolvent debtor’s assets. The rule was
recently considered by the Court of Appeal in Perpetual
Trustee Co Ltd v BNY Corporate Trustee Services Ltd
(Perpetual).11Perpetual has been appealed to the Supreme
Court of England and Wales and it is conceivable that
Briggs J’s conclusions in relation to the anti-deprivation
principle will be affected by the outcome of that appeal.
As Briggs J. commented in Lomas v JFB Firth Rixson
Inc (Lomas v JFB Firth Rixson), the rule is easy to state,
but difficult to apply.12 It is invoked where the provisions
of a contract purport either to deprive a company of
property it owns as at the date it becomes subject to an
insolvency process or to provide for a distribution of the
company’s assets contrary to applicable insolvency
legislation. Where the property in question is a contractual
right, the anti-deprivation rule can apply to a provision
of the contract, even if the provision has been part of the
contract since its inception.13
The way in which a contractual clause is drafted can
affect whether it survives the application of the
anti-deprivation rule. In the seminal case of British Eagle
International Airlines Ltd v Cie Nationale Air France,14
a clause providing for multi-lateral netting between
members of the International Air Transport Association
was found to constitute a “mini-liquidation” outside the
scope of formal insolvency proceedings and therefore to
have offended the anti-deprivation rule. The International
Air Transport Association (IATA) revised its rules in an
attempt to deal with the issues raised by British Eagle.
The revised rules were subsequently considered in the
Australian case of International Air Transport Assoc v
Ansett Australia Holdings Ltd (which although not
technically binding upon the judge in Lomas v JFB Firth
8
The experience of the financial crisis may indicate that the existence of safe harbours from the general treatment of creditors in bankruptcy may have exacerbated instability
by disincentivising participants in derivatives and repurchase markets from taking steps to effectively monitor the credit quality of their counterparties prior to bankruptcy
and that the effective subsidy for derivatives and repurchase activity via bankruptcy benefits not open to other creditors exacerbated risky behavior in the market. For a
cogent discussion of how special treatment of derivative contracts may increase systemic risk, see Mark J. Roe, “The Derivatives Market’s Payment Priorities as Financial
Crisis Accelerator”, ECGI—Law Working Paper No.153/2010 Harvard Public Law Working Paper No. 0–17 (January 7, 2011).
9
11 U.S.C. § 560. Section 561 of the Bankruptcy Code, enacted in 2005, expands the safe harbour to cover a wider range of agreements. Enacted in 2005, it provides that
a party may “cause the termination, liquidation, or acceleration of or to offset or net termination values, payment amounts, or other transfer obligations arising under or in
connection with one or more (or the termination, liquidation, or acceleration of one or more) … (5) swap agreements; or (6) master netting agreements …” 11 U.S.C. § 561.
10
Relevant provisions of the Insolvency Act 1986 are para.65 of Sch.B1 (in relation to administration), s.107 in relation to voluntary winding up and r.4.181(1) of the
Insolvency Rules 1986 (SI 1986/1925) (in relation to compulsory winding up).
11
Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [2009] EWCA Civ 1160; [2010] 3 W.L.R. 87 [2010] Bus. L.R. 632.
12
Lomas v JFB Firth Rixson Inc [2010] EWHC 3372 (Ch).
13
e.g. Jeavons Ex p. Mackay, Re (1872–73) L.R. 8 Ch. App. 643; 42 L.J. Bcy. 68, 21 W.R. 664 (holding ineffective a clause in a contract which purported to terminate a
right to receive royalties upon the bankruptcy of the recipient).
14
British Eagle International Airlines Ltd v Cie Nationale Air France [1975] 1 W.L.R. 758; [1975] 2 All E.R. 390.
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316 Journal of International Banking Law and Regulation
Rixson was cited by him as an authority).15 It was held
that the revisions were effective to avoid the operation
of the anti-deprivation rule, even though the substantive
commercial effect was identical to that intended (but not
achieved) by the original rules.
Comparative analysis of case law under
s.2(a)(iii)
Metavante
Facts
In late 2007, Metavante Corp (Metavante) and LBSF
entered into an interest rate swap transaction documented
under a 1992 ISDA master agreement together with a
trade confirmation. LBHI was the credit support provider
for LBSF’s payment obligations under the agreement.
As a result of a decline in interest rates after the parties
had entered into the transaction, the value of LBSF’s
position under the agreement increased such that by May
2009 Metavante owed LBSF in excess of six million
dollars, representing quarterly payments due in November
2008, February 2009 and May 2009, plus default interest
in excess of $300,000. Metavante refused to make any
payments to LBSF or to perform any of its other
obligations under the Agreement as of November 3, 2008,
arguing that LBSF and LBHI, by filing their respective
petitions for relief under Ch.11 of the United States
Bankruptcy Code, had each caused an event of default
under the Agreement. Metavante argued that as a result
of the occurrence and continuance of those events of
default it had the right, but not the obligation, under the
safe harbour provisions of the Bankruptcy Code, to
terminate all outstanding derivative transactions under
the Agreement. Metavante also maintained that, as a
matter of New York State contract law, it was “not
otherwise required to perform under the Agreement”
because the occurrence and continuance of the events of
default constituted a failure of a condition precedent
specified in the swap agreement, namely s.2(a)(iii) of the
master agreement.16
On September 15, 2009, the first anniversary of LBHI’s
bankruptcy filing, in a ruling read from the bench, the
bankruptcy court judge ruled, in effect, that the provisions
of s.2(a)(iii) of the ISDA master agreement (which
condition a swap counterparty’s obligation to perform its
obligations under a swap agreement upon the absence of
a continuing event of default with regard to its
counterparty) are subject to the automatic stay provisions
of the Bankruptcy Code.
Analysis
Metavante argued that the occurrence of an event of
default under the Agreement entitled it, but did not require
or obligate it, as the non-defaulting party, to terminate
the transaction under the safe harbour from the automatic
stay. In Metavante’s view, it was well-established as a
matter of New York State contract law that a failure of a
condition precedent (in this case, the non-existence of an
event of default) excuses a party’s obligation to perform.17
Metavante argued that under state law it could not be
compelled to make payments under the swap contract
because LBSF and LBHI were unable to provide the
essential item of value for which Metavante had
bargained, namely an effective counterparty. On the other
hand, LBSF and LBHI argued that the Court should treat
the agreement like a “garden variety executory contract”
and that Metavante had effectively waived the benefits
of the safe harbour from the automatic stay owing to its
failure to act, notwithstanding the provisions of s.560 and
561 of the United States Bankruptcy Code.
The Bankruptcy Court held in favor of LBHI and
LBSF. A crucial factor in the decision was a sense that
Metavante was effectively “riding the market for the
period of one year, while taking no action whatsoever”
with respect to the swap and that doing so was “simply
unacceptable and contrary to the spirit of [the safe harbor]
provisions of the Bankruptcy Code.”18 The judge
dismissed Metavante’s reliance on s.2(a)(iii) under state
contract law out of hand on the grounds that the
Bankruptcy Code trumps any state law excuse of
nonperformance. The court also found that the suspension
of a non-defaulting swap counterparty’s obligations that
appears to be permitted under the express terms of
s.2(a)(iii) (even when the event of default is bankruptcy)
did not fall within the safe harbour from the automatic
stay, because the safe harbour provisions ss.560 and 561
of the United States Bankruptcy Code protect a
non-defaulting swap counterparty’s contractual rights
solely to liquidate, terminate or accelerate one or more
swap agreements because of a condition of the kind
specified in s.365(e)(1), or to:
“offset or net out any termination values or payment
amounts arising under or in connection with the
termination, liquidation or acceleration of one or
more swap agreements”
—none of which Metavante was seeking to do. In fact,
far from invoking termination or liquidation rights,
Metavante’s reliance on s.2(a)(iii) was predicated on the
absence of a decision (which it had the contractual right
to make) to terminate the agreement with Lehman.
15
International Air Transport Association v Ansett Australia Holdings Ltd [2008] H.C.A. 3.
Lehman Brothers Holdings Inc, Re (No.08-13555) (JMP) (Bankr SDNY September 15, 2009) (transcript of record, excerpts) at 102–104 and 107–108.
17
The bankruptcy court judge relied in part on Lucre Inc, Re 339 B.R. 648 (W.D. Mich. 2006) for the proposition that a non-debtor counterparty is justified by an uncured
pre-petition breach of an executory contract (such as a bankruptcy) in refusing to tender performance under the contract while conversely the commencement of bankruptcy
proceedings and the imposition of the automatic stay without more does not empower the debtor to compel performance from a non-debtor party.
18
In re Lehman Brothers Holdings Inc Case No. 08–13555 (JMP) (Bankr. SDNY September 15, 2009) transcript at p.110.
16
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ISDA Master Agreement and Emerging Swaps Jurisprudence 317
Moreover, the court found that the legislative history
of the safe harbour provisions evidenced Congress’s intent
to allow for the “prompt” closing out or liquidation of
open accounts upon the commencement of a bankruptcy
case. Consequently, the Bankruptcy Court held that, one
year after the filing, Metavante’s window to act promptly
under the safe harbour provisions had passed, and that
even though Metavante may not have been obligated to
terminate immediately upon the filing of LBHI or LBSF,
it should have acted “fairly contemporaneously with the
bankruptcy filing” if it had wished to avail itself of the
safe harbour. Because Metavante did not, according to
the court, Metavante, had simply waived its right to do
so.
Implications of the decision in Metavante
The Bankruptcy Court decision in Metavante leaves many
issues unresolved. As seen above, the court gave short
shrift to Metavante’s contractual arguments based on New
York law, essentially on the grounds that s.2(a)(iii)
operated as an unenforceable “ipso facto” clause where
the operative event of default was bankruptcy. However,
the decision does not appear to have made any distinction
between the bankruptcy of LBHI as credit support
provider as the event of default that arguably triggered
Metavante’s right to enforce rights under s.2(a)(iii) at a
time when LBSF had not filed a bankruptcy petition and
was not substantively consolidated in the LBHI
bankruptcy estate. To the extent that the suspension of
payments modifying the contractual rights of LBSF
occurred owing to the guarantor’s bankruptcy default it
would appear to fall altogether outside the prohibitions
against ipso facto clauses and the safe harbour provisions
of the US Bankruptcy Code.19 Because the Bankruptcy
Court dismissed the contractual issues it did not have
occasion to address issues such as the extent of the
s.2(a)(iii) suspension of payments. As will be seen below,
these issues were important considerations in Lomas v
JFB Firth Rixson.
The “use it or lose it” aspect of the decision regarding
swap terminations is not altogether surprising, as swaps
market participants have long been aware that a
non-defaulting party that waits too long to give a notice
of termination following the occurrence of an event of
default runs some risk that the right to use the safe harbour
could expire at some point following the period during
which the automatic stay otherwise became effective.20
The Bankruptcy Court’s decision underscores the lack of
certainty over many aspects of the relationship between
the safe harbour provisions of s.560 or 561 of the
Bankruptcy Code and the failure to terminate swap
transactions. One can extrapolate from the Bankruptcy
Court’s decision that after a year of inactivity following
the bankruptcy the non-defaulting counterparty would be
considered to have waived the safe harbour, with the
consequence that its open swap contracts are mere
executory contracts, enforceable by the debtor against it,
but not enforceable by it against a debtor that has not
expressly assumed the obligations and cured all defaults
as provided in s.365 of the United States Bankruptcy
Code. This in turn raises the question of whether and to
what extent the Bankruptcy Court’s decision is limited
to its facts and whether the holding would have been
significantly different had there been different facts or
circumstances than those considered before the
Bankruptcy Court in the Metavante proceeding.
The Bankruptcy Court decision in the Metavante
proceeding adopted a different tack than that taken in the
most recent case that had previously considered the effect
of bankruptcy on a non-defaulting party’s ability to
exercise rights under s.2(a)(iii) of the ISDA master
agreement. In that case, Enron Australia v TXU
Electricity, a court in New South Wales, Australia
permitted a non-debtor counterparty to withhold
performance pursuant to s.2(a)(iii) of the ISDA master
agreement based on an event of default triggered by a
debtor-counterparty’s insolvency filing.21 As will be seen
below, it has not been followed by the English court in
Lomas v JFB Firth Rixson. Therefore, there may be an
open question as to how widely the case will be followed
in the United States or internationally. There will likely
be additional opportunities for the principle to be tested
in the Bankruptcy Court and on appeal, as the same issue
is present as LBHI and LBSF have made numerous
demands to compel payment or performance on
unterminated swap contracts based on the decision in
Metavante. Several proceedings over similarly withheld
payments are pending before the Bankruptcy Court in the
Lehman Brothers case, including matters involving
municipal entities such as the Chicago Board of
Education, commodities companies such as Norton Gold
Fields and financial entities that had entered into credit
default swaps with LBSF.
Lomas v JFB Firth Rixson Inc. and Lehman
Brothers Special Financing Inc v Carlton
Communications Ltd
Two cases in the English courts have dealt with very
similar facts as those described above, and were decided
by the same judge. These are Lomas v JFB Firth Rixson
19
In this regard, the decision appears to foreshadow an expansive view of the scope of the prohibition of “ipso facto” clauses in bankruptcies involving intertwined affiliates
that was later articulated by the bankruptcy court judge in Lehman Brothers Special Financing Inc v BNY Corporate Trustee Services Ltd (Lehman Brothers Holdings Inc,
Re) 422 B.R. 407 (Bankr. S.D.N.Y. 2010). In that case the court found that the automatic stay applied to a counterparty of LBSF not from the date of its bankruptcy filing
but from the earlier date on which LBHI filed for bankruptcy protecton, triggering an event of default in a swap transaction with LBSF owing to credit support default under
s.5(a)(iii) of the ISDS master agreement rather than bankruptcy under s.5(a)(vii).
20
See e.g. Amcor Funding Corp fka Lincoln Am Fin Inv Co, Re No.CIV89-1231 PHX-RMB (D. Ariz. 1990) (Exercise of liquidation and set-off rights by the broker of a
bankrupt customer not protected by the exception to the automatic stay provided by s.362(b) or s.555 of the Bankruptcy Code the when the broker waited for one year from
the customer’s bankruptcy before taking action).
21
Enron Australia v TXU Electricity [2003] NSWSC 1169.
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318 Journal of International Banking Law and Regulation
and Lehman Brothers Special Financing Inc v Carlton
Communications Ltd) (LBSF v Carlton).22 In LBSF v
Carlton, the judge described Lomas v JFB Firth Rixson
as “essential pre-reading” and it is convenient to deal with
Lomas v JFB Firth Rixson first before turning to the
additional issues raised in LBSF v Carlton.
Facts of Lomas v JFB Firth Rixson
Lomas v JFB Firth Rixson concerned five interest rate
transactions to which LBIE was party when it went into
administration in the United Kingdom. In each case, LBIE
was the floating rate payer and its counterparty was a
commercial manufacturing and/or trading company which
had entered into a transaction for hedging purposes. Each
of the transactions was documented under either the 1992
or the 2002 version of the ISDA master agreement and
was governed by English law.
LBIE’s administration constituted an event of default
under s.5(a)(vii) of each of the ISDA master agreements
(as did LBHI’s bankruptcy under Ch.11 which occurred
about an hour earlier on the morning of September 15,
2008). Thereafter, each of LBIE’s counterparties
suspended further payments in reliance upon s.2(a)(iii)
of the master agreement. As in the Metavante case, each
of LBIE’s counterparties was “out of the money” and
none of them exercised its right under s.6 to designate an
early termination date. None of the master agreements
contained an automatic early termination election and
therefore each of the transactions was continuing,
although neither party was making further payments.
The Joint Administrators of LBIE argued that, as a
matter of contractual interpretation, s.2(a)(iii) does not
allow the counterparties to suspend payments indefinitely:
either it operates only for a “reasonable time” or it
operates only until the expiry date of the relevant
transaction (i.e. the last date for the performance of
payments under the relevant transaction or its termination
by effluxion of time). Alternatively, they argued that, if
the counterparties’ interpretation of s.2(a)(iii) was correct,
the operation of s.2(a)(iii) offended the anti-deprivation
rule. For good measure, the Joint Administrators asserted
that the counterparties’ interpretation of s.2(a)(iii) gave
rise to a penalty or a forfeiture against which the court
should grant relief.
Against this, the various counterparties put forward
two alternative interpretations of s.2(a)(iii). The first,
based on the express terms of s.2(a)(iii), was that no
payment obligation arises if an event of default or
potential event of default exists on a scheduled payment
date (either at that time or at any time thereafter). The
second interpretation was that no payment obligation
arises if an event of default or potential event of default
exists on the scheduled payment date and continues until
the expiry date of the relevant transaction (or alternatively
until the expiry date of all transactions governed by the
relevant ISDA master agreement). A third interpretation
22
23
was advanced by ISDA, which intervened as an interested
party with permission of the court. ISDA argued that no
payment obligation arises if an event of default or
potential event of default exists on the scheduled payment
date, but that if and when the event of default or potential
event of default ceases, the payment obligation will then
arise (even if this occurs after the expiry date of the
relevant transaction).
Contractual interpretation
The judge’s decision in Lomas v JFB Firth Rixson can
be distinguished from the bankruptcy court judges ruling
in Metavante in that it contains a detailed analysis of the
contractual construction of s.2(a)(iii) of the ISDA master
agreement (as well as a consideration of the effectiveness
of its terms in the context of insolvency). Before dealing
with each of the various alternative interpretations of
s.2(a)(iii) advanced by the Joint Administrators and by
the respondents, the judge referred to two general
considerations in interpreting s.2(a)(iii).
The first was the need, given the widespread use of the
ISDA master agreement, for “clarity, certainty and
predictability in its interpretation.” The second concerned
the limited circumstances in which an English court will
find that a term is implied into a contract. Here the judge
cited the Privy Council’s judgment in Att Gen of Belize
v Belize Telecom Ltd and in particular the passage which
begins:
“[i]t follows that in every case in which it is said
that some provision ought to be implied in an
instrument, the question for the court is whether such
a provision would spell out in express words what
the instrument, read against the relevant background,
would reasonably be expected to mean.”23
In other words, there is no scope for the court to find
that a term is implied simply because it makes commercial
sense or even because reasonable parties to the contract
would have adopted the term had it been suggested to
them. Rather, in order to imply a term, the court must
find that it merely clarifies the parties’ presumed
intention. Further, as Lord Hoffmann remarked in Belize
Telecom, the process of deciding whether the construction
of a contract requires the implication of a term:
“arises when the instrument does not expressly
provide for what is to happen when some event
occurs. The most usual inference in such a case is
that nothing is to happen.”
Suspension
The fundamental question underlying the various
alternative constructions of s.2(a)(iii) was whether it
merely suspends payment obligations or whether it
effectively extinguishes them “once and for all.”
Lehman Brothers Special Financing Inc v Carlton Communications Ltd) [2011] EWHC 718 (Ch).
Att Gen of Belize v Belize Telecom Ltd [2009] UKPC 11; [2009] 1 W.L.R. 1988; [2009] Bus. L.R. 1316.
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ISDA Master Agreement and Emerging Swaps Jurisprudence 319
In this respect textual differences between the 1992
version of the ISDA master agreement and the 2002
version were crucial to the analysis. As noted above,
s.9(h)(i)(3) of the 2002 version provides for interest to
accrue on amounts which would have fallen due but for
the operation of s.2(a)(iii). In the light of s.9(h)(i)(3),
none of the parties in Lomas v JFB Firth Rixson argued
that s.2(a)(iii) of the 2002 version operated to extinguish,
once and for all, a payment obligation on its scheduled
payment date if an event of default or potential event of
default subsisted at that time. However, some of the
counterparties sought to maintain that s.2(a)(iii) did have
that effect in the 1992 version of ISDA master agreement.
The judge found some arguments that supported the
counterparties’ position. The “once and for all”
interpretation was consistent with a literal interpretation
of s.2(a)(iii) and had the merit of simplicity and certainty.
It was also in keeping with Lord Hoffmann’s remark in
Belize Telecom to the effect that where no express
provision is made for an event, the starting assumption
is that no provision was intended. The event in this case
relevant to the maxim of construction was the cessation
of the event of default or potential event of default.
Despite those arguments, the judge decided that
s.2(a)(iii) did not have the “once and for all” effect that
the counterparties had suggested. His main reason was
that this interpretation could lead to a very uncommercial
result if the default were minor and short lived. He cited
the hypothetical example of a vexatious litigant serving
a winding up petition upon a company. The winding up
petition would constitute an event of default under the
company’s ISDA master agreements for which it would
be the defaulting party. On the counterparties’
interpretation of s.2(a)(iii), all scheduled payments to
which the company would be otherwise entitled under its
ISDA master agreements during the period in which the
winding up petition was in effect would be irrevocably
waived. The judge considered that this interpretation
would be pointlessly draconian and therefore could not
have been intended by the parties.
Two further reasons were advanced in support of the
decision: one was that s.2(a)(iii) is engaged not only by
an event of default but also by a potential event of default,
which might never become an event of default and could
thus result in a potentially draconian result under the
counterparties’ interpretation that s.2(a)(iii) has a once
and for all effect. The other reason was that, if s.2(a)(iii)
resulted in the once and for all extinguishment of payment
obligations, there is no obvious reason why those payment
obligations should be taken into account in calculating a
settlement amount on early termination, as provided by
s.6 of the ISDA master agreement.
However, the judge decided that the suspension of
payment obligations would last only until the expiry date
of the relevant transaction. He rejected ISDA’s assertion
that the contingent payment obligation arising on a
scheduled payment date that occurs during the
continuation of an event of default or potential event of
default could continue indefinitely. He considered that
such a result would be wholly inconsistent with a
reasonable understanding of the ISDA master agreement.
He also found it to be at odds with the wording of s.9(c),
which provides for the parties’ obligations under the
ISDA master agreement to survive the termination of any
transaction “without prejudice to” rights under s.2(a). The
judge considered that the implication of the words
“without prejudice” is that the normal rule under s.9(c)
that obligations under an ISDA master agreement survive
the termination of any transaction did not apply to
payment obligations suspended by operation of s.2(a)(iii).
That being the case, on the expiry date of the relevant
transaction, do any payment obligations that are still
suspended by s.2(a)(iii) become due and payable (as the
Joint Administrators argued) or do they become
extinguished for good? The judge found the Joint
Administrators’ position to be inconsistent with s.9(c)
and could see no basis for implying into the ISDA master
agreement the additional provisions that would have been
necessary to deal with settlement (and for which the Joint
Administrators advanced a number of alternatives).
Accordingly, any suspended payment obligations still
outstanding on the expiry date of the relevant transaction
were extinguished.
The decision to terminate
The Joint Administrators argued for two limits on the
discretion of the non-defaulting party in relation to the
termination of an ISDA master agreement following an
event of default.
First, they asserted that s.2(a)(iii) operates only for a
reasonable time after which the non-defaulting party must
elect either to terminate or to continue to perform its
payment obligations in full. This essentially was a
significant factor underlying the ruling in Metavante,
albeit that the rationale advanced by the Joint
Administrators in Lomas v JFB Firth Rixson on this
particular point was based on contractual interpretation
rather than general provisions of insolvency law. The
court rejected the Joint Administrators’ position. A
payment default under an interest rate transaction deprives
the non-defaulting party of the hedge it bargained for.
The judge considered that the termination was simply
one way in which the ISDA master agreement enables a
non-defaulting party to manage risk arising from its
counterparty’s default. Termination would not necessarily
protect the non-defaulting party. Although the broad effect
of the ISDA master agreement’s termination provisions
is to entitle the non-defaulting party to the replacement
cost of the hedge, the defaulting party would not
necessarily be in a position to pay. Therefore, withholding
payment in reliance upon s.2(a)(iii) should be viewed as
an alternative way for the non-defaulting party to manage
its risk, rather than being simply a precursor to
termination.
The judge made a further (and perhaps more obvious)
point in relation to the Joint Administrators’ assertion
that the suspension of payments under s.2(a)(iii) should
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320 Journal of International Banking Law and Regulation
last only for a reasonable period. The express language
of s.2(a)(iii) states that the condition precedent to payment
is to subsist for so long as the event of default or potential
event of default “has occurred and is continuing.” The
suggestion that the suspension lasts only for a reasonable
period was, according to the judge, contrary to that
express provision as to the duration of the payment
suspension.
The second putative limit on the non-defaulting party’s
discretion suggested by the Joint Administrators was that
the non-defaulting party should not be permitted to
exercise its discretion to designate an early termination
date in a manner that is “arbitrary, capricious or
unreasonable” and that, as a consequence, when it
becomes clear that a default is permanent, or where it
itself decides to re-hedge, it must exercise its right to
terminate. Again, there are echoes of the Metavante
decision here. In the bankruptcy court judge’s words the
conduct of Metavante in:
“riding the market for a period of one year, while
taking no action whatsoever, is simply unacceptable
and contrary to the provisions of the Bankruptcy
Code.”
In Lomas v JFB Firth Rixson, the Joint Administrators
invited the judge to find an implied term in the ISDA
master agreement that would prevent the counterparties
from “riding the market” in a way that might be thought
to be contrary to the spirit of the ISDA master agreement
itself.
The judge emphatically rejected the Joint
Administrators’ position on this point, reasoning that s.6
gives the non-defaulting party the discretion to terminate
the ISDA master agreement upon the occurrence of an
event of default in order to protect its own interests. It
has a choice of alternative remedies (i.e. to terminate or
to withhold payment under s.2(a)(iii) and is free to choose
between them as it chooses). There was nothing in the
counterparties’ conduct that could be categorised as
dishonest, in bad faith or exercised other than for the
purpose for which it was conferred.
Netting
The list of issues agreed in advance of the hearing
included the question of whether, if the counterparty were
to prove in the administration of LBIE, it could prove for
the gross amount owed to it by LBIE under the ISDA
master agreement. To put it another way, would the
counterparty have to bring into account amounts with
respect to which the payment obligation was suspended
by the operation of s.2(a)(iii)? This issue invited a
re-examination of the court’s finding in Marine Trade
SA v Pioneer Freight Futures Co Ltd BVI that s.2(c) of
the ISDA master agreement (which deals with
pre-termination netting) does not apply to amounts that
24
are suspended by operation of s.2(a)(iii), so that the
non-defaulting party is entitled to require the defaulting
party to pay gross.24
In the event, the judge was not required to consider
this question. By the time of the hearing, the Joint
Administrators and the counterparties agreed that the
fixed/floating rate swaps that were the subject of Lomas
v JFB Firth Rixson could be distinguished from the
forward freight agreements considered in Marine Trade
on the supposed grounds that they contained simultaneous
and inter-dependent payment obligations. The judge noted
that, had the parties not been in agreement, his
determination might have been different. While the parties
to Lomas v JFB Firth Rixson are bound by their
agreement, the case does not set a precedent in relation
to this particular question.
Application of the anti-deprivation rule
The Joint Administrators’ case in relation to the anti
deprivation rule was essentially as follows: LBIE was the
owner of an asset when it went into administration,
namely its contingent right to receive payments under the
various outstanding interest rate transactions (the right
being contingent upon LBIE being “in the money” on
each relevant payment date and there being no subsisting
event of default or potential event of default). Because
there was no real prospect of LBIE emerging from
administration, s.2(a)(iii) purported to deprive LBIE of
this right upon its administration (as the entry of LBIE
into administration constituted an event of default under
s.5(a)(vii)) of each of the ISDA master agreements.
Therefore, the judge ruled that the anti-deprivation rule
could potentially apply. As has been noted above in
respect of Jeavons Ex p. Mackay, Re, the mere fact that
s.2(a)(iii) was present in the ISDA master agreements
from the outset did not necessarily exclude the operation
of the anti-deprivation rule. The judge drew a distinction
between cases in which the contractual right is a quid pro
quo for something already done, sold or delivered before
the onset of insolvency (where the “court will be slow to
permit the insertion, even ab initio, of a flaw in the asset
triggered by the insolvency process” and cases where the
contractual right is the quid pro quo for services yet to
be rendered (where “the court will readily permit the
insertion, ab initio, of such a flaw”).
The judge considered that the interest rate swap
transactions between LBIE and its counterparties fell into
the latter category. The right of LBIE to receive ongoing
payments under the ISDA master agreements was the
quid pro quo for the ongoing provision by LBIE of
interest rate hedges. Section 2(a)(iii) was properly
understood as a provision designed to ensure that LBIE
would only receive that quid pro quo for as long as it was
in a financial condition to meet its own obligations (rather
than as an attempt to deprive LBIE of payment for
services already rendered).
Marine Trade SA v Pioneer Freight Futures Co Ltd BVI [2009] EWHC 2656 (Comm); [2010] 1 Lloyd’s Rep. 631; [2009] 2 C.L.C. 657.
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ISDA Master Agreement and Emerging Swaps Jurisprudence 321
The judge caveated his conclusion in two ways. He
made it clear that his decision was based on the economic
terms of the interest rate transactions before him, all of
which constituted an “ongoing relationship” between the
parties under which it was contemplated that each of them
would continue to make periodic payments. The same
conclusion would not necessarily apply to all transactions
governed by an ISDA master agreement. The judge also
said that he might have decided differently but for the
stipulation by the parties that the disputed payment related
to the net amount that would have been owed by one to
the other (but for s.2(a)(iii)s.2(a)(iii) of the ISDA master
agreement) rather than the gross amount of the payments
each would have been required to make but for s.2(a)(iii).
Had the parties disputed payment obligations been a gross
amount, the financial burden upon LBIE would have been
greater than it would have been had it not gone into
administration, and the judge indicated that in that
circumstance the anti-deprivation rule might well have
been contravened.
The judge also addressed one further issue: the question
of how LBHI’s entry into Ch.11 (which itself constituted
an event of default) would have affected the operation of
the anti-deprivation rule, had it otherwise applied. He
concluded that, had LBHI’s insolvency occurred first, the
anti-deprivation rule could not have applied: at the
moment of LBIE’s entry into administration, it would
have had no asset of which it could be deprived (as
LBHI’s insolvency would have already effectively
deprived it of the asset). The same logic would apply if
the Bankruptcy Events of Default in relation to LBIE and
LBHI had occurred at the same time.
Penalty and forfeiture
The Joint Administrators’ case that s.2(a)(iii) either
constituted a penalty or resulted in the forfeiture of
property for which the court should grant relief were dealt
with briefly and rejected. At trial, counsel for the Joint
Administrators conceded that the section could not
constitute a penalty clause, because the triggering event
(i.e. the occurrence of a bankruptcy event of default) was
not a breach of contract. However, the issue was fully
argued in LBSF v Carlton as set out below. In relation
to forfeiture, the judge decided that the contingent right
of LBIE to receive ongoing payments under each ISDA
Master Agreement did not fall into one of the categories
of property for which the court would grant relief from
forfeiture and that, even if it had done, s.2(a)(iii) gave
rise to a condition precedent to payment rather than a
forfeiture.
LBSF v Carlton: additional issues
The facts of LBSF v Carlton were very similar to those
in Lomas v JFB Firth Rixson. Carlton is an English media
and broadcasting company. It had entered into an interest
rate transaction for hedging purposes with LBSF, a
subsidiary of LBHI and the principal company within the
Lehman group engaged in fixed-income OTC derivatives.
LBSF was placed in Ch.11 bankruptcy on October 3,
2008. As mentioned above, LBHI had itself been placed
in Ch.11 on September 15. Both Ch.11 proceedings
constituted events of default under the ISDA master
agreement between LBSF and Carlton.
There was one difference between the interest rate
transactions considered in LBSF v Carlton and those
considered in Lomas v JFB Firth Rixson that was material
in the context of the anti-deprivation rule. In LBSF v
Carlton there was only one further scheduled payment
date after the date on which the first event of default
occurred. Counsel for LBSF therefore sought to
distinguish the two cases on the grounds that the ongoing
relationship involving continuing scheduled periodic
payments that characterised Lomas v JFB Firth Rixson
was not present in LBSF v Carlton. At the point in time
at which Carlton’s payment obligation was suspended by
s.2(a)(iii), there were no further payments scheduled and
therefore there was no ongoing relationship. The
transaction therefore fell into the first of the two
categories described in Lomas v JFB Firth Rixson (in
relation to which the judge had stated that the court should
be slow to permit the insertion of a flaw or contingency
into the payment obligation).
The court rejected the proposed distinction between
the two cases. The principle reason given was that the
question of whether s.2(a)(iii) offends the anti-deprivation
rule should be viewed generally rather than by reference
to the date on which the insolvency event actually occurs.
This appears to imply that the effectiveness of s.2(a)(iii)
(or any other condition precedent to payment) should be
assessed with reference to circumstances as at the time
the ISDA master agreement (or perhaps the particular
transaction) is entered into. The court also found force in
the argument that the suspension took effect at the time
at which the first event of default occurred (at which point
there was one further scheduled exchange of payments
and therefore the relationship between the parties could
be viewed as ongoing in any event). Finally, on the
particular facts of the case, the event which had deprived
LBSF of its right to payment was the insolvency of LBHI
rather than its own insolvency (and so the anti-deprivation
rule did not apply).
Counsel for LBSF also argued that if, on its true
construction, s.2(a)(iii) operates to terminate any
remaining suspended payment obligations on the expiry
date of the relevant transaction, it would amount to a
“walk away” clause which, counsel submitted, would
lead to regulated entities subject to capital adequacy
requirements being unable to report their credit exposures
under ISDA master agreements on a net basis. Counsel
for LBSF argued that, as regulated entities are regular
users of ISDA master agreements, this result could not
have been intended by the parties. Perhaps unsurprisingly,
this point was also rejected, mainly on the grounds that
any expectation that a regulated entity might have in
relation to the capital treatment of an ISDA master
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322 Journal of International Banking Law and Regulation
agreement was not part of the general commercial
knowledge that parties to an ISDA master agreement
could reasonably be assumed to have.
Counsel for LBSF also raised to the issue of whether
or not s.2(a)(iii) is void as a penalty because it provides
for damages for breach of contract in excess of a
reasonable pre-estimate of loss. (The Joint Administrators
had chosen not to pursue this issue at trial in Lomas v
JFB Firth Rixson). However, the judge rejected this
argument too on the ground that, as the doctrine of
penalties is a derogation from the general presumption
in favor of freedom of contract; as such, the court declined
to extend it to apply to events of default, particularly in
the context of sophisticated financial contracts.
Postscript to Lomas v JFB Firth Rixson: the
Nil Loss cases
In the short time since its publication, Lomas v JFB Firth
Rixson has been considered in two English cases
concerning the termination of transactions under s.6 of
the ISDA master agreement: Pioneer Freight Futures
Company Ltd (in liquidation) v TMT Asia Ltd25 and
Britannia Bulk plc (in liquidation) v Pioneer Navigation
Ltd.26 Both cases concerned forward freight agreements
(FFAs) entered into by Pioneer Freight Futures Co Ltd
(Pioneer). FFAs are derivative transactions under which
one party pays to the other the difference between a fixed
price and the actual freight price published by the Baltic
Exchange in relation to a designated shipping route and
a specified period. The FFAs were governed by the
FFABA terms which incorporated by reference the terms
of the 1992 ISDA master agreement and specified that
automatic early termination and the Loss method of
calculating early termination amounts were applicable.
At the height of the financial crisis in 2008, a number
of companies active in the freight derivatives market were
in financial difficulties. In both cases, a party to an FFA
contract suspended making payments in reliance upon
s.2(a)(iii). Subsequently, an early termination was
triggered under the automatic early termination provisions
applicable to the FFAs.
The issue in both cases was whether payments which
would otherwise have become due under the FFAs in the
absence of s.2(a)(iii) should be taken into account in
calculating the early termination amounts. The
non-defaulting counterparties sought to argue that
s.2(a)(iii) had a “one off” effect rather than suspending
the right to payment. Therefore, the non-defaulting
counterparties argued, no amounts which were scheduled
to be paid to defaulting party at any time after it became
subject to an event of default should be taken into account.
As the defaulting party would not have been entitled to
any further payments, it suffered no loss on the
termination of the FFAs. The non-defaulting
counterparties maintained this position both in relation
to scheduled payment dates falling due after the event of
25
26
default but before termination (termed in Pioneer v TMT
the retrospective nil loss argument) and also in relation
to scheduled payment dates after the termination of the
FFAs (the prospective nil loss argument).
In both cases, the non-defaulting counterparties’
arguments were rejected and the defaulting counterparty
was entitled to bring into account payments which would
otherwise have been due to it both before and after the
termination of the FFAs. In both cases, that conclusion
was based in part upon an analysis of the words
“assuming satisfaction of each condition precedent” in
the definition of “Loss” which were held to mean that, in
calculating Loss, the parties should make the hypothetical
assumption that the requirements of s.2(a)(iii) and any
other conditions precedent to payment were met (rather
than meaning that the definition was only concerned with
those payment obligations in relation to which all
conditions precedent had in fact been satisfied). The
judgments in both cases also emphasise the commercial
intention behind the selection of the Second Method in
ISDA master agreements that a party should not be
deprived of the economic benefit of its hedging
transaction simply because it is in default (an intention
which would have been largely circumvented had the
non-defaulting counterparties’ arguments been accepted).
Both judges also pointed out that the non-defaulting
counterparties’ interpretation of the reference to
conditions precedent in the definition of “Loss” would
have resulted in the economic effect of an early
termination calculation based on the Loss definition being
very different to one based on Market Quotation—a
conclusion which they considered would not have been
intended by the parties to an ISDA master agreement.
Both Pioneer v TMT and Britannia Bulk support the
conclusion in Lomas v JFB Firth Rixson that s.2(a)(iii)
is intended to suspend the right to payment rather than
terminate it for once and for all. Given that finding and
the fact that all of the transactions considered in Pioneer
v TMT and Britannia Bulk had terminated, the
anti-deprivation rule was not relevant to the analysis.
Implications of Lomas v Rixson and LBSF
v Carlton
The central conclusion of the contractual analysis set out
in Lomas v JFB Firth Rixson and followed in LBSF v
Carlton was that, under English law, s.2(a)(iii) operates
to suspend the obligation to pay rather than effectively
extinguishing it “for once and for all.” This conclusion
will surely be welcomed by most market participants.
The overwhelming use of the “second method” under the
1992 version of the ISDA master agreement as the method
for calculating termination payments shows that the
market does not consider that a defaulting party should
be permanently deprived of the economic terms of a swap
transaction simply because it is in default. Moreover, in
coming to that result, the analysis in Lomas v JFB Rixson
Pioneer Freight Futures Company Ltd (in liquidation) v TMT Asia Ltd [2011] EWHC 778 (Comm).
Britannia Bulk plc (in liquidation) v Pioneer Navigation Ltd [2011] EWHC 692 (Comm).
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ISDA Master Agreement and Emerging Swaps Jurisprudence 323
Firth is consistent with existing English precedent in
relation to the interpretation of contracts and gives due
emphasis to the express terms contained in the ISDA
master agreement itself. This, too, is to be welcomed in
promoting certainty as an objective in the interpretation
of financial contracts and preserving the ability of the
market, should it so choose, to amend the standard ISDA
master agreement terms to arrive at a different result.
The judge’s conclusion that the expiry date of a
transaction brings to an end any subsisting right to
payment which has been suspended under s.2(a)(iii) will
be perhaps less readily understood. Depending on the
circumstances, there may or may not be a period of time
for the defaulting party to remedy the event of default
and therefore bring the suspension of its right to receive
payment to an end. However, the termination of
suspended payment obligations upon the expiry of the
relevant transaction permanently deprives the defaulting
party of a payment which it has bargained for, just as
much as a “once and for all” interpretation of s.2(a)(iii)
would have done. The judge’s assumption that the parties
to an ISDA master agreement would not countenance
contingent obligations remaining outstanding for an
indefinite period is weakened by the fact that this was the
position advocated by ISDA (which should have a better
understanding of what market participants would expect,
or what the master agreements are intended to provide,
than anyone).
The conclusion that the interest rate transactions
considered in Lomas v JFB Firth Rixson and LBSF v
Carlton do not offend the anti-deprivation rule is also to
be welcomed. However, it is regrettable that that
conclusion rests, at least in part, upon the concession by
the counterparties that the interest rate swaps contained
simultaneous and inter-dependent payment obligations,
and that therefore the counterparties were not entitled to
prove for the gross amount of their claims without giving
credit for the contingent obligations due to them. Unless
the interest rate confirmations were drafted in a very
unusual manner, there appears to be no obvious basis for
distinguishing them from the swaps considered in Marine
Trade. There is a clear inference in Lomas v JFB Firth
Rixson that the outcome of the case could have been
different had this concession (which was essentially a
concession about a matter of law) not been made. The
same would also be true in LBSF v Carlton.
The cases also leave a great deal of uncertainty about
the ambit of the anti-deprivation rule. It is, as the judge
put it in Lomas v JFB Firth Rixson a “difficult dividing
line.” Not only may it be difficult to put a particular
transaction on one side of the line or the other, but the
cases also raise the prospect that transactions documented
on similar terms will end up on different sides of the line:
s.2(a)(iii) may well offend the anti-deprivation rule in the
context of other swap transactions. This does not promote
the goal of certainty.
Moreover, it is not possible to state the rule with any
degree of precision. Where a contractual right is a quid
pro quo for something already done, sold or delivered
before the onset of insolvency, it appears that the court
will be reluctant to allow the asset to be flawed or made
contingent upon the non-occurrence of an insolvency
event. However, the exact circumstances in which such
a flaw or contingency will contravene the rule are unclear.
It is not even possible to say that the outcome will depend
in each case upon the judge’s determination of the
substantive issue of fairness, because the application of
the anti-deprivation rule can be affected by other factors
such as the form in which the underlying contract is
drafted (as in Ansett Australia Holdings) or matters which
do not appear to have any bearing on the substantive issue
of fairness (such as the order in which LBIE and LBIH
entered insolvency proceedings during the space of an
hour on the morning of September 15, 2008).
Given that the Supreme Court’s decision in Perpetual
is expected shortly, it is hoped that current uncertainties
in relation to the anti-deprivation rule are resolved and
that we are left with an anti-deprivation rule which is
precise in scope and recognizes the effectiveness of
flawed asset arrangements to complement the clear
contractual analysis of the ISDA master agreement
contained in Lomas v JFB Firth Rixson and followed in
LBSF v Carlton.
Conclusion
The effectiveness of s.2(a)(iii) is a matter of great concern
to both regulators and market participants.27
In Metavante and Lomas v JFB Firth Rixson the United
States and English courts, respectively, reached different
conclusions as to the effect of s.2(a)(iii). To an extent,
the different conclusions reflected differences in the
insolvency laws of the two jurisdictions. The judge found
that ss.560 and 561 of the United States Bankruptcy Code
did not exempt the operation of s.2(a)(iii) from the
“automatic stay” on enforcement of contractual rights by
counterparties of a debtor in a bankruptcy case. In
contrast, the moratorium on enforcement against a
company in administration which is provided for by
para.42 of Sch.B1 of the English Insolvency Act 1986
does not apply to contractual “self-help” remedies such
as set-off or the withholding of payments. Therefore, the
central issue in Metavante (i.e. whether s.2(a)(iii) is
caught by mandatory automatic stay/moratorium
provisions under applicable insolvency law) did not arise
in Lomas v JFB Firth Rixson.
27
In the UK, HM Treasury’s consultation paper “Establishing Resolution Arrangements for Investment Banks” published in December 2009 called upon the market to
develop proposals to enable a greater degree of certainty with respect to derivatives transaction termination and, in particular, to require transactions to be terminated after
a period of time following an event of default. As this article has gone to press, ISDA has proposed potential amendments to s.2(a)(iii) to address concerns raised in that
paper and relating to some of the decisions discussed above. A link to the ISDA press release discussing the proposed potential amendments and the establishment of a
Working Group of ISDA members to consider it follows—http://isda.informz.net/isda/archives/archive_1122732.html [Accessed May 23, 2011].
[2011] J.I.B.L.R., Issue 7 © [2011] Thomson Reuters (Professional) UK Limited and Contributors
324 Journal of International Banking Law and Regulation
Notwithstanding this difference, the English court in
Lomas v JFB Firth Rixson was equally concerned with
insolvency law, albeit in relation to the application of the
anti-deprivation
rule
rather
than
automatic
stay/moratorium provisions. Although on the facts the
anti-deprivation rule was not offended, the judge in Lomas
v JFB Firth considered that there might be other
circumstances in which the operation of s.2(a)(iii) is
affected by the operation of the anti-deprivation rule. On
the basis of current English precedent, there appears to
be no basis for challenging that determination. Some
commentators (including, it seems, HM Treasury) have
concluded that Lomas v JFB Firth is authority for the
proposition that the English Courts will respect the
operation of s.2(a)(iii). The case certainly provides a
strong working assumption that this will be the case, but
at least until the Supreme Court’s decision in Perpetual
is published, there remains at least a theoretical possibility
that the anti-deprivation rule may have an impact on
s.2(a)(iii) in other circumstances.
From the standpoint of the derivatives market, there
are strong policy arguments for treating the effectiveness
of s.2(a)(iii) and other flawed asset arrangements as being
a matter of contract law (so that, assuming the payer is
not itself insolvent, the only question of insolvency law
would be whether the contract itself could be challenged
under applicable rules governing the adjustment of
preferential transactions). This would bring greater
certainty to the interpretation of the ISDA master
agreement. It would also accord with the expectations of
market participants, who might be forgiven for assuming
that their own liability to pay amounts under an ISDA
master agreement would be determined in accordance
with the governing law of the contract rather than the law
governing their counterparty’s insolvency.
In other respects, the cases are very different. JFB Firth
Rixson contains a far more detailed discussion of the
pertinent terms of the ISDA master agreement. In part
this is a function of the basis on which the New York and
English cases were decided. However, it may also reflect
the English court’s express recognition of the importance
of the issue in point, not only for the parties involved in
it, but also for the wider derivatives market. This concern
is also borne out by the elevation of Perpetual to the
English Supreme Court.
That is not to say that the position arrived at by the
court in JFB Firth Rixson is preferable, from the
perspective of the derivatives market, to that arrived at
by the bankruptcy court judge in Metavante. While the
effectiveness of s.2(a)(iii) was upheld in Lomas v JFB
Firth Rixson, the grounds on which the case was decided
leave some uncertainly as to whether the section would
be effective in relation to other ISDA transactions. In
contrast, the court came to a clear conclusion in
Metavante, Re which enables all of LBHI’s other swap
counterparties to understand their position under both
New York contract law and US federal bankruptcy safe
harbours as regards s.2(a)(iii).
In addition to the appeal to the English Supreme Court
in Perpetual we understand that the first instance decisions
in Lomas v JFB Firth Rixson, LBSF v Carlton and
Britannia Bulk v Pioneer are also due to be appealed. It
remains to be seen whether the courts or indeed the
legislatures in either the United States or the United
Kingdom will provide a basis for recognizing the
effectiveness of s.2(a)(iii) and other flawed asset
arrangements in accordance with their express terms,
without reference to the Bankruptcy Code or the
anti-deprivation rule, respectively. To do so would surely
promote the use of their own law as a governing law for
international finance transactions.
[2011] J.I.B.L.R., Issue 7 © [2011] Thomson Reuters (Professional) UK Limited and Contributors